When ruling on negligence, should courts consider factors unrelated to the potential harm of an activity (such as the activity’s usefulness to society)?
65 Neb. 889
Supreme Court of Nebraska
Chicago, B. & Q. R. Co. v. Krayenbuhl
Oct. 9, 1902
ALBERT, C. This action was brought on behalf of Lee Krayenbuhl, whom we shall hereafter call the plaintiff, by his next friend, against the Chicago, Burlington & Quincy Railroad Company to recover for personal injuries received by the plaintiff while playing on a turntable belonging to the defendant.4
It sufficiently appears from the evidence that on and prior to the 20th day of October, 1895, the defendant operated a line of rail-road, which extended through the village of Palmer, at which point it maintained a passenger depot, roundhouse, coalhouse, water tank, and turntable. A few rods northwest of the depot the road branched, one branch taking a westerly and the other a northwesterly course. The turntable was situated between those two branches, at a point about 1600 feet from the depot and about 100 feet from each branch and a track extended to it from the point' of divergence of the two branches A path or footway beginning some distance northwest of the turntable ex-tended in a southeasterly direction passed within about 70 feet of it and crossed the track at the south. This path was in common use, not only by the members of the family to which the plaintiff belonged, but by the public generally, and there was no fence between it and the turntable. The turntable was provided with a movable bolt, which by means of a lever could be thrown into a socket in the surrounding framework, thus holding the turntable in position. Provision was also made for locking it with a padlock. The rules of the defendant in force at the time required the foreman of the roundhouse, or in his absence the station agent, to keep the turntable locked when not in use; but there is considerable evidence to the effect that this rule was frequently disregarded, and that, owing to the looseness of one of the staples used in connection with the lock even when thus fas-tened it could be unfastened by young children without much difficulty The plaintiff's father was in the employ of the defendant as section foreman and with his family occupied a small house on the right of way near the station within about 30 feet of the track and about 1600 feet from the turntable Another family resided on the right of way a few rods from the turntable The two families visited back and forth using the right of way for a path. The plaintiff’s father kept a cow, which was pastured on the right of way, sometimes near the turntable, and it appears from the evidence that his children drove it back and forth on the right of way as occasion required. There is evidence tending to show that it was the common practice for the children of the family and other children in the neighborhood to resort to the coalhouse, roundhouse, and turntable, and to amuse themselves by revolving the turntable, and riding it while it was in motion, and that this practice was known to the defendant, who permitted it without protest.5
On the 20th day of October, 1895, in the absence of his parents, the plaintiff,—he was then four years of age,—in company with some other members of the family, the oldest of whom was eleven years old, and some other children, the oldest of whom was fourteen, were playing with a push car, moving it up and down on the railroad track. The agent in charge of the station joined them, and rode a short distance on the car. He then left them, and went to his rooms in the station. The children continued to push the car, and finally reached the turntable. There is evidence sufficient to sustain a finding that they found the turntable unlocked and unguarded, but the evidence is conflicting on that point. The plaintiff and some of the other children got on the turntable, while two of the others set it in motion. While it was in motion the plaintiff's foot was caught between the rails, and severed at the ankle joint. The injury thus sustained is that for which damages is sought in this action. A trial was had to a jury, which resulted in a verdict and judgment for the plaintiff. The defendant brings error.6
The first question raised is that the petition does not state facts sufficient to constitute a cause of action. The grounds of this objection, as stated in the defendant's brief, are as follows: "It does not allege the authority of any agent of the defendant to in-vite the plaintiff upon its turntable, or any facts which constitute such express invita-tion. It does not allege the characteristics either of location or construction of the table, which of themselves render the table an invitation to the danger." The petition is too long to set out at length. We think it will suffice to say that the allegations in these respects are that the plaintiff was induced by other small children, with the knowledge and consent of the defendant, its agents and servants, and by the invitation of the defendant, to come to and about the turntable. Oh the face of the petition, this is an allegation of an invitation by the defendant. If the plaintiff were invited by the defendant, he was invited by some agent of the defendant having authority in the premises. The allegation in that regard is sufficient. It is true the facts constituting such invitation are not set forth nor do we deem it necessary that they should be for the purposes of the objection under consideration, which was first made by an objection to the introduction of any testimony on the ground that the facts stated in the petition did not constitute a cause of action.7
The question to which counsel have directed the greater portion of their arguments is whether the facts in this case are sufficient to sustain the verdict. On this ques-tion we have been favored with an exhaustive discussion of what Is commonly known as the "doctrine of the Turntable Cases," -which applied to the facts in this case, would sustain the verdict. The leading case in support of this doctrine is Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745. The doctrine was reaffirmed by the same court in Railroad Co. v. McDonald 152 D. S. 262, 14 Sup. Ct. 61D, 38 L. Ed. 434, and was expressly approved by this court in Railroad Co. V. Bailey, 11 Neb. 336 9 N W 50, and was approved and applied in the following among other cases: Barrett v Pacific Co 91 Cal 296 27 ??? 666 25 Am. St. Rep 186; Keffe v. Railway' Co Minn. 207, 18 Am. Rep. 393; Twist v. Railroad Co. (Minn.) 39 N. W. 402, 12 Am. St. Rep. 626; Railway Co. v. Pitzsimmons, 21 Kan. 686, 31 Am. Rep. 203; Navigation Oo. v. Hedrick, 1 Wash. 446, 25 ???. 335, 22 Am. St. Rep. 169; Railroad Co. v. Skidmore (Tex. Civ. A pp.) 65 S. W. 215; Railway Co. v. McWhirter, 77 Tex. 356, 14 S. W. 26, 19 Am. St. Rep. 755; Harrlman v. Railway Co., 45 Ohio St 11, 12 N. E. 451, 4 Am. St. Rep. 507; Ferguson v. Railway Co., 75 Ga. 637; Nagel v. Railway Co., 75 Mo. 653, 42 Am. Rep. 418. The doctrine, as we gather it from the cases cited, is that where a turntable is so situated that its owner may reasonably expect that children too young to appreciate the danger will resort to it, and amuse themselves by using it, it is guilty of negligence for a failure to take reasonable precautions to prevent such use. It has not been permitted to pass as law unchallenged. On the contrary, it has been expressly repudiated in many cases, among which are the following: Walsh v. Railroad Co. (N. Y.) 39 N. E. 1069, 27 L. R. A. 724, 45 Am. St. Rep. 615; Daniels v. Railroad Co., 154 Mass. 349, 28 N. B. 283. 13 L. R. A. 24& 26 Am. St Rep. 253; Frost v. Railroad, 64 N. H. 220, 9 Atl. 790, 10 Am. St Rep, 396; Railroad Co. v. Reich (N. J. Err. & App.) 40 AtL 682, 41 L. R. A. 831, 68 Am. St Rep. 727. It has been criticised in others, among which are Ryan v. Towar (Mich.) 87 N. W. 644, 55 L. R. A. 310, and Dobbins v. Railroad Co. (Tex. Sup.) 41 S. W. 62, 38 L. R, A. 673, 66 Am. St. Rep. 856. The latter case would seem to throw some doubt on the position of the courts of Texas In regard to the doctrine in question, but the case of Railroad Co. v. Skidmore, supra, appears to be the latest expression of the court on the question.8
The defendant insists that the doctrine is unsound, and asks that it be repudiated by the court, and that the case of Railroad Co. v. Bailey, supra, be overruled. The argument in this behalf rests on the proposition that the owner of dangerous premises owes no active duty to trespassing children. The assumption that; the plaintiff was a trespasser might well be questioned. The right of way was his home and playground; it was where his father performed his dally labors; it was used ?? a path and for other purposes by the family. But as the duty of the owner of dangerous premises to infant trespassers is raised by other assign-ments, it will shorten this opinion to allow the assumption to pass unchallenged. The proposition is not universally true, as is clearly shown, we think:, by Sedgwick, J., in Tucker v. Duaper, 62 Neb. 66, 86 N. W. 917, wherein be says: "* * * There may be; and often are, circumstances under which one owes some active duty to a trespasser upon his premises. If a man willfully lies down upon a railroad track, the engineer must not wantonly run his engine over him. One may not set a snare or spring gun for trespassers, and, knowing that some stranger had placed the snare or spring gun, it he wantonly allows It to remain he will be responsible for the consequences. A well may be so contrived as to act as a danger?us trap, and one who allows it so to remain upon his premises will, under some circumstances, be liable. If adults, or children of such age as to ordinarily be capable of discerning and avoiding danger, are injured while trespassing upon the premises of another, they may be without remedy, while under similar circumstances children of three or four years of age would be protected. If I know that there is an open well upon my premises, and know that children of such tender years as to have no notion of their danger are continually playing around it and I can obviate the danger with very little trouble to myself, and without injuring the premises or interfering with my own free use thereof, I owe an active duty to those children, and if I neglect that duty, and they fall into the well and are killed, it is through my negligence. I cannot urge their negligence as a defense, even though I have never invited or encouraged them, expressly or im-pliedly, to go upon the premises."9
The language amounts to a reaffirmance of the doctrine of the turntable cases, and, to our minds, suggests the true principle upon which cases of this character rest; that is, that where the owner of dangerous prem-ises knows, or has good reason to believe, that children so young as to be ignorant of the danger will resort to such premises he la bound to take such precautions to keep them from such premises, or to protect them from injuries likely to result from the dan-gerous condition of the premises while there, as a man of ordinary care and prudence, under like circumstances, would take. At first sight it would seem that the principle, thus stated, is too broad, and that its application would impose unreasonable burdens on owners, and intolerable restrictions on the use and enjoyment of property. But it must be kept in mind that It requires nothing of the owner that a man of ordinary care and prudence would not do of his own volition, under like circumstances. Such a man would not willingly take up unreasonable burdens, nor vex himself with intolerable restrictions.10
It is true, as said in Loomis v. Terry, 17 Wend. 497, 31 Am. .Dec. 306, "the business of life must go forward"; the means by which it is carried forward cannot be rendered absolutely safe. Ordinarily, It can be best carried forward by the unrestricted use of private property by the owner; therefore the law favors such use to the fullest extent consistent with the main purpose for which, from a social standpoint such business is carried forward, namely, the public good. Hence, in order to determine the extent to which such use may be enjoyed, its bearing on such main purpose must be taken into account, and a balance struck between its advantages and disadvantages. If, on the whole, such use defeats, rather than promotes, the main purpose, it should not be permitted; on the other hand, if the restrictions proposed would so operate, they should not be imposed. The business of life is better carried forward by the use of dangerous machinery; hence the public good demands its use, although occasionally such use results In the loss of life or limb. It does so because the danger is insignificant When weighed against the benefits resulting from the use of such machinery, and for the same reason demands its reasonable, most effective and unrestricted use, up to the point where the benefits resulting from such use no longer outweigh the danger to be anticipated from it At that point the public good demands restrictions. For example, a turntable is a dangerous contrivance, which facilitates railroading; the general benefits re-sulting from its use outweigh the occasional injuries inflicted by it; hence the public good demands its use. We may conceive of means by which it might be rendered absolutely safe, but such means would so interfere with its beneficial use that the danger to be anticipated would not justify their adoption; therefore the public good demands its use without them. But the danger incident to its use may be lessened by the use of a lock which would prevent children, attracted to it, from moving it; the interference with the proper use of the turntable oc-casioned by the use of such lock is so slight that it is outweighed by the danger to be anticipated from an omission to use it; therefore the public good, we think, demands the use of the lock. The public good would not require the owner of a vacant lot on which there is a pond to fill up the pond or enclose the lot with an impassable wall to insure the safety of children resorting to it, because the burden of doing so is out of proportion to the danger to be anticipated from leaving it undone. Richards v. Connell, 45 Neb. 467, 63 N. W. 915. But where there is an open well on a vacant lot, which is frequented by children, of which the owner of the lot has knowledge, he is liable for injuries sustained by children falling Into the well, because the danger to be anticipated from the open well, under the circumstances, outweighs the slight expense or Inconvenience that would be entailed in making it safe. Tucker ?. Draper, supra.11
Hence, in all cases of this kind In the determination of the question of negligence, regard must be had to the character and location of the premises, the purpose for which they are used, the probability of Injury therefrom, the precautions necessary to prevent such injury, and the relations such pre-cautions bear to the beneficial use of the premises. The nature of the precautions would depend on the particular fact In each case. In some cases a warning to the children or the parents might be sufficient; in others, more active measures might be required. But in every case they should be such as a man of ordinary care and prudence would observe under like circumstances. If, under all the circumstances, the owner omits such precautions as a man of ordinary care and prudence, under like circumstances, would observe, he is guilty of negligence. We are fully satisfied that the principle under consideration is sound, and that its application would not operate op-pressively on the owner. We see no good reason for receding from the position already taken by this court in cases of this character.12
The defendant tendered the following Instruction: "The jury are instructed that in this case the plaintiff claims, In substance, that the railroad company was negligent in the manner in which it kept and used the turntable by which the plaintiff was injured, and that the turntable in question was a machine that was naturally enticing to children, and that children were tempted to play on and about this turntable. On this point the court instructs you that the law is that the railroad company has the right to the exclusive use of Its own grounds and turntable and other machinery, the same as any other person has the exclusive right and use of his own property and premises, and that the company was under no obliga-tions to keep its turntable in such a condition that it would be safe and convenient for children to play upon and to use as a plaything; and the court instructs you that the defendant was under no obligation to keep a watchman at and about said turntable for the purpose of excluding children therefrom; that the company was only required to exercise reasonable care In the placing and using of said turntable, and have the same fitted with such appliances as would make it reasonably safe and convenient for the purpose for which it was intended." The court re-fused the instruction as tendered, and modified it by omitting the concluding clause, and inserting the following: "But the company was required to exercise reasonable care in the placing and fastening of the turntable and having the same fitted with such appliances as would make It reasonably safe In the situation where it was placed, under the circumstances as disclosed in this case."13
The instruction as thus modified was given. The complaint of the refusal of the court to give the instruction as tendered is covered by what has been said on the sufficiency of the facts to sustain the verdict. But the defendant insists that the Instruction as modified is erroneous, in that it submitted to the jury the proper construction and location of the turntable. Taking the Instruction as a whole, we do not think it admits of that construction. The opening sentence informs the jury of the nature of the plaintiffs claim; that such claim is that the defendant "was negligent in the manner in which it kept and used the turntable by which the plaintiff was injured." In paragraph 7 of the Instructions the jury were told that the action rests on the alleged negligence of the defendant in not keeping the turntable guarded, locked, or properly fastened. In the fifteenth paragraph they were told that the defendant "had a right to have and use the turntable in the carrying on of its business as a railroad company." The re-jected clause of the Instruction under consideration, as tendered by the defendant, uses the word "placing," the, only word used in the substituted clause that could be construed as a reference to the location or construction of the turntable. From these considerations, we think the clause complained of has no refer-ence to the location nor original construction of the turntable, but refers rather to the condition In which it was to be kept or left when not in use. In the light of the entire charge, the jury could hardly have understood it to refer to the location or construction of the turntable.14
Another instruction tendered by the defendant is as follows: "If the jury find from the evidence that the turntable in question was a ponderous and powerful machine when set in motion, and that according to its mechanism it would turn easily, and when turned, even for a small space, it would accumulate a force of momentum of great power; and if you further find that the young people and Children meddling with said turntable at the time of the injury complained of worked upon the levers of said machine back and forth through the small space in which the turntable could be moved, even when the fastenings were in proper place and held the machine; and that by motion and momentum of the Machine set in motion by the young people at the levers the fastenings became loosened so as to permit the turntable to go around, then you are Instructed that under this state of facts the plaintiff could not recover, and your verdict should be for the defendant." It was refused, and its refusal is now assigned as error. The instruction entirely omits the question of due care. There was evidence to the effect that the lock used for the turntable was little, if any, obstacle to the use of the turntable by children, because one of the staples was loose, and could be easily removed. The instruction, if given, would have justified a finding of due care, however carelessly the turntable was fastened. That would have been erroneous. The Instruction, In our opinion, was properly refused.15
The court on its own motion gaye the following instruction as part of the charge to the jury: "But if you find, from a preponderance of the evidence, that the turntable in question was a dangerous machine, and the defendants did know, or had reason to believe, under the circumstances of the case, the children of the place would resort to the turntable to play, and that if they did they would or might be injured, then, if they took no means to keep the children away, and no means to prevent accident, this would be evidence of negligence, and would be answerable for damages caused thereby to the children of tender years, and who did not possess sufficient knowledge or understanding to know the danger or dangerous character of such turntable. However, the defendants are not insurers of the limbs of those, whether adults or children, who may resort to their grounds, and there are many injuries continually happening which involve no pecuniary liability to any one." The defendant contends that there is no evidence to support the hypothesis that the defendant took no means to keep the children away, and no means to prevent the accident. The evidence of at least one of the children who was present at the time, and who assisted in revolving the turntable at the time, is to the effect that it was not locked, but yielded at once to their efforts to move it. There is other evidence to the same effect. Another witness testifies that it was never locked. As to the means taken to keep the children from the turntable, a considerable portion of the testimony offered on behalf of the plaintiff tends to show that no such means were taken. The defendant contends that the location of the turntable, at a distance from the town, was, in itself, a means of protection But the instruction has reference to circumstances as they existed at the time of the accident. The location of the turntable, as a means of protection, is important only as tending to show the improbability of children resorting to it, and that the defendant could not reasonably be expected to anticipate that they would do so. It becomes immaterial when, according to the hypothesis, the defendant knew, or had good reason to believe, that children would resort to the turntable and be injured by it The instruction, we think, finds ample basis in the evidence.16
Another criticism urged against this Instruction is that it invades the province of the Jury, in that it charges that if the defendant, under the circumstances stated, took no means to keep the children away, and no means to prevent the accident, it would be answerable in damages. The defendant insists that the question of negligence was one for the jury, and that it was not within the province of the court to say, in effect, that a certain state of facts constituted negligence. We are inclined to think this criticism is just. From the wording of the instruction, the jury could hardly draw any other conclusion than that, if they found the facts specifically stated therein, the verdict should be for the plaintiff; in other words, that such facts were to be considered by them, not only as evidence of negligence, but as negligence per se. It has been repeatedly held by this court that it is erroneous to single out and state a group of facts, and inform the jury that if such facts are found it establishes the existence of negligence. The question of negligence is seldom one of law. and the facts enumerated in the instruction should have been considered by the jury as evidence of negligence, to be considered in the light of all the other facts and circumstances shown in evidence. To thus single out and state a group of facts has been held by this court to amount to an improper comment on questions of fact by the court. We think the instruction was erroneous, and that the following cases Support that view: Railway Co. v. Baier, 37 Neb. 235, 55 N. W. 913; Railway Co v. Morgan, 40 Neb. 604, 59 N. W. 81; Railroad Co. -v. Oleson, 40 Neb. 889, 59 N. W 354; Village of Culbertson v. Holllday, 50 Xeb. 229, 69 N. W. 853.17
The nineteenth and twentieth paragraphs of the charge to the jury related to the measure of damages, and are as follows:18
"(19) The jury are instructed if from the evidence in the case, and under the constructions of the court, the jury shall find the issues for the plaintiff, and that the plaintiff has sustained damages, as charged in the declaration, then, to enable the jury to estimate the amount of such damages, it is not necessary that any witness should have expressed an opinion as to the amount of such damage, but the jury may themselves make such estimate from the facts and circumstances in proof, and by considering them in connection with their own knowledge, observation, and experience in the business affairs of life.19
"(20) The jury are instructed that if, on the evidence in the case and under the instructions of the court, they find the issue in favor of the plaintiff, and that the plaintiff has sustained damages, as charged in the petition, then in assessing such damages they should take into consideration the age, expectancy of life of the plaintiff, his inability to labor as shown by the evidence, his mental anguish and bodily pain, if any has been shown, and whether or not the injury to the plaintiff is permanent. You should take all these elements into consideration, and allow him such a sum as will be fair and just20
compensation for the injuries sustained, not exceeding the sum of $25,000. But you cannot allow him exemplary damages; that is,21
damages of punishment of the defendants."22
One objection urged against these Instructions is that the jury were required to consider the facts and circumstances in evidence "in connection with their own knowledge, observation, and experience In the business affairs of life." It is not only proper, but necessary, that, in arriving at a verdict, the jury should make use of such knowledge as they possess to common with other men. But the instruction imposes no such limitation. We think the jury might have fairly inferred from it that they were required to bring to bear any special knowledge which they might have on the subject, or the result of their observations and ex1-perience in like cases, which would be manifestly improper.23
Another objection to the instructions in this behalf is that the jury were required to take into account the plaintiffs inability to labor as an element of damage. The defendant insists that as the plaintiff is a minor, in the custody of his father, who is charged with his support and entitled to his earnings during minority, his inability to labor during his minority is not a proper element of damage In this case. The case of Railroad Co. v. Johnson (Tex. Sup.) 44 S. W. 1067, was an action for personal injuries to an infant, and an instruction not different in principle from those complained of was held reversible error for the reasons now urged by the defendant. The same principle was involved in an instruction con-sidered In Decker v. McSorley (Wis.) 86 N. W. 554. The instruction was condemned.24
A further objection is urged against these instructions, and that is that they instruct the jury that the damages shall not exceed $25,000. The defendant insists that an intimation was thereby conveyed to the jury that they might allow that sum, and that such intimation was prejudicial to the defendant. No authority is cited in support of this objection, nor are we aware that any exists. It is not unusual for courts to instruct the jury as to the limit of damages allowable under the pleadings in the case. As a matter of practice, we believe it should be omitted. If the damages awarded exceed the amount allowable, the remedy is simple. We believe that most lawyers will agree with us that the intimation conveyed to the jury by such a statement is dangerous to the defendant. We do not go to the extent of saying that it would constitute reversible error, but we believe the practice should be discountenanced.25
In the course of the trial, the court permitted the plaintiff to introduce in evidence a certain printed rule of the defendant which provided that turntables should be kept locked when not in use, and that it was the duty of agents at the stations where there was no engine house foreman to see that such turntables were locked after being used. Parol testimony whs admitted to the same effect. It also admitted evidence to the effect that immediately after the accident the station agent went to the turntable and locked It. The defendant insists that the admission of this evidence was error. We do not think so. If was necessary to bring home to the defendant knowledge that children were likely to resort to the turntable. There is evidence tending to show that both employees mentioned in the rule introduced in evidence had knowledge of such fact, and the rule, taken in connection with the evidence to their relations to the defendant, tends to bring such knowledge home to the defendant. That the agent locked the turntable immediately after the accident had a bearing on the question of whether the turntable was locked before the accident, which was one of the issues in the case.26
Another witness was permitted to testify that he went to the turntable after the accident, on the same day, and found the table unlocked. The defendant argues that jt was not admissible to show the condition of the table after the accident occurred. This evidence, we think, is also admissible, as tending to show that the children found the turntable unlocked before the accident occurred.27
Objection is also made to the admission of evidence of testimony to the effect that the roadmaster, or division superintendent, which one is not stated, was at the turntable after the accident, how long after does not appear. The object of this evidence is not clear, nor are we able to see how it had any influence on the verdict one way or another. The objection that it was Immaterial appears to be well founded, but we cannot see that its admission would constitute reversible error.28
The defendant complains of the admission of testimony to the effect that the station agent on the day of the accident met the children, who were playing with the push car, rode a short distance on the push car, and said nothing to the children about playing with it. The ground of this complaint appears to be that playing with the push car, when the agent saw them and took part in the sport, and playing on the turntable, some 500 yards distant, were independent transactions, and the agent could not reasonably anticipate that they would go to the turntable from the place be left them, and therefore was not required to warn them of its danger. It seems to us that the station grounds as a whole were dangerous premises, especially for children of that age. The turntable was only one of its many dangers. the evidence objected to, it seems to us, was competent to show that the defendant had knowledge that children frequented these dangerous premises, and that they did so with, its knowledge and consent. We think there was no error in the admission of this testimony.29
Certain impeaching questions were addressed to one of the defendant's witnesses which were objected to by the defendant on the ground, among others, that no foundation bad been bid. Before the questions were asked, the defendant's attention was directed to the time and, place where the con-tradictory statements were made, and to the persons in whose presence they were made. Taken in connection with his testimony on direct examination, the witness could not fall to understand to what the question related. We think the foundation was sufficient, and that his answers, some of them showing that be had made contradictory statements, were properly admitted.30
We recommend that the judgment of the district court be reversed, and the cause remanded for further proceedings according to law.31
AMES and DUFFIE, concur32
PER CURIAM. For the reasons stated in the foregoing opinion, the judgment of the district court is reversed, and the cause remanded for further proceedings according to law.
Should we consider actors to be negligent if they fail to take precautions that require little effort, and would have mitigated the risk of harm?
177 N.E. 416
Court of Appeals of New York.
ELIZABETH S. GREENE, Respondent, v. SIBLEY, LINDSAY AND CURR COMPANY, Appellant.
APPEAL from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 23, 1931, affirming a judgment of the Monroe County Court in favor of plaintiff, entered upon a verdict.3
CARDOZO, Ch. J. Plaintiff, having made a purchase in the defendant's department store, stood at a counter waiting for her change. While standing there, she turned to her right and saw beside her a mechanic and a floorwalker looking at a cash register which was said to be out of order. Then she turned to her left, and gathered up her change which the shop girl had brought for her. In the meantime, the mechanic had gone down on his knees in order to look up into the mechanism, with the result that his legs stretched back upon the flooring of the aisle. Plaintiff, supposing, so she tells us, that he was standing where he stood before, and meaning to go around him, stumbled over his foot. She suffered injuries for which she sues.4
We find no evidence of negligence.5
The mechanic had been standing by the plaintiff, busy, as she perceived, in the repair of the machine. She had no thought that he had gone away during the moment or two that had passed in the collection of the change. On the contrary, she supposed, so she says, that he was standing where he was before. " I thought I was making a sweep around him standing there." The merest glance would have told her that instead of standing there erect, he was down upon his knees. We do not sav that there was contributory negligence on her part in the failure to be more observant of the fact that his attitude had changed. It is quite a different thing to sav that there was negligence on his part in the failure to foresee how little observant she would be.6
The measure of the defendant's duty was reasonable care (Hart v. Grennell, 122 N. Y. 371, 374; Larkin v. O'Neill, 119 N. Y. 221). Looking back at the mishap with the wisdom born of the event. We can see that the mechanic would have done better if he had given warning of the change of pose. Extraordinary prevision might have whispered to him at the moment that the warning would be helpful. What the law exacted of him, however, was only the ordinary prevision to be looked for in a busy world. He was doing a common and simple act in the plain sight of those around him. The act did not involve a continuing obstruction with the indefinite possibilities of mischief that permanence implies (cf. . Ginns v. Sherer Co., 219 Mass. 18; Nye v. Liggett Co., 224 Mass. 401). It was a matter of minutes or perhaps seconds. A saleswoman who had knocked a package off a counter or a customer dropping a handbag or a glove might have done the same thing. If the kneeling mechanic gave any thought to the plaintiff standing at his side, he must have known that she had seen him at work upon his job. Was he to suppose that she would act as if he were still standing there erect when to his knowledge a mere glance would have told her something else ?8
The judgment of the Appellate Division and that of the County Court should be reversed and the complaint dismissed with costs in all courts.9
LEHMAN, KELLOGG, O'BRIEN' and HUBBS, J.J., concur; POUND and CRANE, J J., dissent.10
Judgments reversed, etc.
Should we attempt to reduce the standard of reasonable care into forms that seem more empirical—like an algebraic formula?
Circuit Court of Appeals, Second Circuit.
Edmund F. Lamb and Purdy & Lamb, all of New York City, for Conners Marine Co., Inc.,8
Christopher E. Heckman and Foley & Martin, all of New York City, for Carroll Towing Co., Inc.9
Frederic Conger and Burlingham, Veeder, Clark & Hupper, all of New York City (Chauncey I. Clark, of New York City, of counsel), for Pennsylvania Railroad Company.10
Before L. HAND, CHASE and FRANK, Circuit Judges.11
L. HAND, Circuit Judge.12
These appeals concern the sinking of the barge, "Anna C," on January 4, 1944, off Pier 51, North River. The Conners Marine Co., Inc., was the owner of the barge, which the Pennsylvania Railroad Company had chartered; the Grace Line, Inc., was the charterer of the tug, "Carroll," of which the Carroll Towing Co., Inc., was the owner. The decree in the limitation proceeding held the Carroll Company liable to the United States for the loss of the barge's cargo of flour, and to the Pennsylvania Railroad Company, for expenses in salving the cargo and barge; and it held the Carroll Company also liable to the Conners Company for one half the damage to the barge; these liabilities being all subject to limitation. The decree in the libel suit held the Grace Line primarily liable for the other half of the damage to the barge, and for any part of the first half, not recovered against the Carroll Company because of limitation of liability; it also held the Pennsylvania Railroad secondarily liable for the same amount that the Grace Line was liable. The Carroll Company and the Pennsylvania Railroad Company have filed assignments of error.13
The facts, as the judge found them, were as follows. On June 20, 1943, the Conners Company chartered the barge, "Anna C," to the Pennsylvania Railroad Company at a stated hire per diem, by a charter of the kind usual in the Harbor, which included the services of a barge, apparently limited to the hours 8 A.M. to 4 P.M. On January 2, 1944, the barge, which had lifted the cargo of flour, was made fast off the end of Pier 58 on the Manhattan side of the North River, whence she was later shifted to Pier 52. At some time not disclosed, five other barges were moored outside her, extending into the river; her lines to the pier were not then strengthened. At the end of the next pier north (called the Public Pier), lay four barges; and a line had been made fast from the outermost of these to the fourth barge of the tier hanging to Pier 52. The purpose of this line is not entirely apparent, and in any event it obstructed entrance into the slip between the two tiers of barges. The Grace Line, which had chartered the tug, "Carroll," sent her down to the locus in quo to "drill" out one of the barges which lay at the end of the Public Pier; and in order to do so it was necessary to throw off the line between the two tiers. On board the "Carroll" at the time were not only her master, but a "harbormaster" employed by the Grace Line. Before throwing off the line between the two tiers, the "Carroll" nosed up against the outer barge of the tier lying off Pier 52, ran a line from her own stem to the middle bit of that barge, and kept working her engines "slow ahead" against the ebb tide which was making at that time. The captain of the "Carroll" put a deckhand and the "harbormaster" on the barges, told them to throw off the line which barred the entrance to the slip; 171*171 but, before doing so, to make sure that the tier on Pier 52 was safely moored, as there was a strong northerly wind blowing down the river. The "harbormaster" and the deckhand went aboard the barges and readjusted all the fasts to their satisfaction, including those from the "Anna C," to the pier.14
After doing so, they threw off the line between the two tiers and again boarded the "Carroll," which backed away from the outside barge, preparatory to "drilling" out the barge she was after in the tier off the Public Pier. She had only got about seventy-five feet away when the tier off Pier 52 broke adrift because the fasts from the "Anna C," either rendered, or carried away. The tide and wind carried down the six barges, still holding together, until the "Anna C" fetched up against a tanker, lying on the north side of the pier below — Pier 51 — whose propeller broke a hole in her at or near her bottom. Shortly thereafter: i. e., at about 2:15 P.M., she careened, dumped her cargo of flour and sank. The tug, "Grace," owned by the Grace Line, and the "Carroll," came to the help of the flotilla after it broke loose; and, as both had syphon pumps on board, they could have kept the "Anna C" afloat, had they learned of her condition; but the bargee had left her on the evening before, and nobody was on board to observe that she was leaking. The Grace Line wishes to exonerate itself from all liability because the "harbormaster" was not authorized to pass on the sufficiency of the fasts of the "Anna C" which held the tier to Pier 52; the Carroll Company wishes to charge the Grace Line with the entire liability because the "harbormaster" was given an over-all authority. Both wish to charge the "Anna C" with a share of all her damages, or at least with so much as resulted from her sinking. The Pennsylvania Railroad Company also wishes to hold the barge liable. The Conners Company wishes the decrees to be affirmed.15
The first question is whether the Grace Line should be held liable at all for any part of the damages. The answer depends first upon how far the "harbormaster's" authority went, for concededly he was an employee of some sort. Although the judge made no other finding of fact than that he was an "employee," in his second conclusion of law he held that the Grace Line was "responsible for his negligence." Since the facts on which he based this liability do not appear, we cannot give that weight to the conclusion which we should to a finding of fact; but it so happens that on cross-examination the "harbormaster" showed that he was authorized to pass on the sufficiency of the fasts of the "Anna C." He said that it was part of his job to tie up barges; that when he came "to tie up a barge" he had "to go in and look at the barges that are inside the barge" he was "handling"; that in such cases "most of the time" he went in "to see that the lines to the inside barges are strong enough to hold these barges"; and that "if they are not" he "put out sufficient other lines as are necessary." That does not, however, determine the other question: i. e., whether, when the master of the "Carroll" told him and the deckhand to go aboard the tier and look at the fasts, preparatory to casting off the line between the tiers, the tug master meant the "harbormaster" to exercise a joint authority with the deckhand. As to this the judge in his tenth finding said: "The captain of the Carroll then put the deckhand of the tug and the harbor master aboard the boats at the end of Pier 52 to throw off the line between the two tiers of boats after first ascertaining if it would be safe to do so." Whatever doubts the testimony of the "harbormaster" might raise, this finding settles it for us that the master of the "Carroll" deputed the deckhand and the "harbormaster," jointly to pass upon the sufficiency of the "Anna C's" fasts to the pier. The case is stronger against the Grace Line than Rice v. The Marion A. C. Meseck, was against the tug there held liable, because the tug had only acted under the express orders of the "harbormaster." Here, although the relations were reversed, that makes no difference in principle; and the "harbormaster" was not instructed what he should do about the fasts, but was allowed 172*172 to use his own judgment. The fact that the deckhand shared in this decision, did not exonerate him, and there is no reason why both should not be held equally liable, as the judge held them.16
We cannot, however, excuse the Conners Company for the bargee's failure to care for the barge, and we think that this prevents full recovery. First as to the facts. As we have said, the deckhand and the "harbormaster" jointly undertook to pass upon the "Anna C's" fasts to the pier; and even though we assume that the bargee was responsible for his fasts after the other barges were added outside, there is not the slightest ground for saying that the deckhand and the "harbormaster" would have paid any attention to any protest which he might have made, had he been there. We do not therefore attribute it as in any degree a fault of the "Anna C" that the flotilla broke adrift. Hence she may recover in full against the Carroll Company and the Grace Line for any injury she suffered from the contact with the tanker's propeller, which we shall speak of as the "collision damages." On the other hand, if the bargee had been on board, and had done his duty to his employer, he would have gone below at once, examined the injury, and called for help from the "Carroll" and the Grace Line tug. Moreover, it is clear that these tugs could have kept the barge afloat, until they had safely beached her, and saved her cargo. This would have avoided what we shall call the "sinking damages." Thus, if it was a failure in the Conner Company's proper care of its own barge, for the bargee to be absent, the company can recover only one third of the "sinking" damages from the Carroll Company and one third from the Grace Line. For this reason the question arises whether a barge owner is slack in the care of his barge if the bargee is absent.17
As to the consequences of a bargee's absence from his barge there have been a number of decisions; and we cannot agree that it is never ground for liability even to other vessels who may be injured. As early as 1843, Judge Sprague in Clapp v. Young, held a schooner liable which broke adrift from her moorings in a gale in Provincetown Harbor, and ran down another ship. The ground was that the owners of the offending ship had left no one on board, even though it was the custom in that harbor not to do so. Judge Tenney in Fenno v. The Mary E. Cuff, treated it as one of several faults against another vessel which was run down, to leave the offending vessel unattended in a storm in Port Jefferson Harbor. Judge Thomas in The On-the-Level, held liable for damage to a stake-boat, a barge moored to the stake-boat "south of Liberty Light, off the Jersey shore," because she had been left without a bargee; indeed he declared that the bargee's absence was "gross negligence." In the Kathryn B. Guinan, Ward, J., did indeed say that, when a barge was made fast to a pier in the harbor, as distinct from being in open waters, the bargee's absence would not be the basis for the owner's negligence. However, the facts in that case made no such holding necessary; the offending barge in fact had a bargee aboard though he was asleep. In the Beeko, Judge Campbell exonerated a power boat which had no watchman on board, which boys had maliciously cast loose from her moorings at the Marine Basin in Brooklyn and which collided with another vessel. Obviously that decision has no bearing on the facts at bar. In United States Trucking Corporation v. City of New York, the same judge refused to reduce the recovery of a coal hoister, injured at a foul berth, because the engineer was not on board; he had gone home for the night as was apparently his custom. We reversed the decree, but for another reason. In The Sadie, we affirmed Judge Coleman's holding that it was actionable negligence to leave without a bargee on board a barge made fast outside another barge, in the face of storm warnings. The damage was done to the 173*173 inside barge. In The P. R. R. No. 216, we charged with liability a lighter which broke loose from, or was cast off, by a tanker to which she was moored, on the ground that her bargee should not have left her over Sunday. He could not know when the tanker might have to cast her off. We carried this so far in The East Indian, as to hold a lighter whose bargee went ashore for breakfast, during which the stevedores cast off some of the lighter's lines. True, the bargee came back after she was free and was then ineffectual in taking control of her before she damaged another vessel; but we held his absence itself a fault, knowing as he must have, that the stevedores were apt to cast off the lighter. The Conway No. 23 went on the theory that the absence of the bargee had no connection with the damage done to the vessel itself; it assumed liability, if the contrary had been proved. In The Trenton, we refused to hold a moored vessel because another outside of her had overcharged her fasts. The bargee had gone away for the night when a storm arose; and our exoneration of the offending vessel did depend upon the theory that it was not negligent for the bargee to be away for the night; but no danger was apparently then to be apprehended. In Bouker Contracting Co. v. Williamsburgh Power Plant Corporation, we charged a scow with half damages because her bargee left her without adequate precautions. In O'Donnell Transportation Co. v. M. & J. Tracy, we refused to charge a barge whose bargee had been absent from 9 A.M. to 1:30 P.M., having "left the vessel to go ashore for a time on his own business."18
It appears from the foregoing review that there is no general rule to determine when the absence of a bargee or other attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. However, in any cases where he would be so liable for injuries to others, obviously he must reduce his damages proportionately, if the injury is to his own barge. It becomes apparent why there can be no such general rule, when we consider the grounds for such a liability. Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i. e., whether B > PL. Applied to the situation at bar, the likelihood that a barge will break from her fasts and the damage she will do, vary with the place and time; for example, if a storm threatens, the danger is greater; so it is, if she is in a crowded harbor where moored barges are constantly being shifted about. On the other hand, the barge must not be the bargee's prison, even though he lives aboard; he must go ashore at times. We need not say whether, even in such crowded waters as New York Harbor a bargee must be aboard at night at all; it may be that the custom is otherwise, as Ward, J., supposed in "The Kathryn B. Guinan," supra; and that, if so, the situation is one where custom should control. We leave that question open; but we hold that it is not in all cases a sufficient answer to a bargee's absence without excuse, during working hours, that he has properly made fast his barge to a pier, when he leaves her. In the case at bar the bargee left at five o'clock in the afternoon of January 3rd, and the flotilla broke away at about two o'clock in the afternoon of the following day, twenty-one hours afterwards. The bargee had been away all the time, and we hold that his fabricated story was affirmative evidence 174*174 that he had no excuse for his absence. At the locus in quo — especially during the short January days and in the full tide of war activity — barges were being constantly "drilled" in and out. Certainly it was not beyond reasonable expectation that, with the inevitable haste and bustle, the work might not be done with adequate care. In such circumstances we hold — and it is all that we do hold — that it was a fair requirement that the Conners Company should have a bargee aboard (unless he had some excuse for his absence), during the working hours of daylight.19
The decrees will be modified as follows. In the libel of the Conners Company against the Pennsylvania Railroad Company in which the Grace Line was impleaded, since the Grace Line is liable in solido, and the Carroll Company was not impleaded, the decree must be for full "collision damages" and half "sinking damages," and the Pennsylvania Railroad Company will be secondarily liable. In the limitation proceeding of the Carroll Company (the privilege of limitation being conceded), the claim of the United States and of the Pennsylvania Railroad Company will be allowed in full. Since the claim of the Conners Company for "collision damages" will be collected in full in the libel against the Grace Line, the claim will be disallowed pro tanto. The claim of the Conners Company for "sinking damages" being allowed for one half in the libel, will be allowed for only one sixth in the limitation proceeding. The Grace Line has claimed for only so much as the Conners Company may recover in the libel. That means that its claim will be for one half the "collision damages" and for one sixth the "sinking damages." If the fund be large enough, the result will be to throw one half the "collision damages" upon the Grace Line and one half on the Carroll Company; and one third of the "sinking damages" on the Conners Company, the Grace Line and the Carroll Company, each. If the fund is not large enough, the Grace Line will not be able altogether to recoup itself in the limitation proceeding for its proper contribution from the Carroll Company.20
Decrees reversed and cause remanded for further proceedings in accordance with the foregoing.22
 2 Cir., 148 F.2d 522.24
 Fed.Cas.No. 2786.26
 D.C., 84 F. 719.28
 D.C., 128 F. 511.30
 2 Cir., 176 F. 301.32
 D.C., 10 F.2d 884.34
 D.C., 14 F.2d 528.36
 2 Cir., 18 F.2d 775.38
 2 Cir., 62 F.2d 1076.40
 D.C., 57 F.2d 908.42
 56 F.2d 604.44
 2 Cir., 62 F.2d 242.46
 2 Cir., 64 F.2d 121.48
 2 Cir., 72 F.2d 283.50
 2 Cir., 130 F.2d 96, 98.52
 2 Cir., 150 F.2d 735, 738.54
 2 Cir., 176 F.2d 301.
Should reasonable care protect against all conceivable harm, no matter how unlikely?
The defendant runs a trolley line in the city of Dunkirk, employing the overhead wire system. At one point, the road is crossed by a bridge or culvert which carries the tracks of the Nickle Plate and Pennsylvania railroads. Pedestrians often use the bridge as a short cut between streets, and children play on it. On April 21, 1916, the plaintiff, a boy of twelve years, came across the bridge, swinging a wire about eight feet long. In swinging it, he brought it in contact with the defendant’s trolley wire, which ran beneath the structure. The side of the bridge was protected by a parapet eighteen inches wide. Four feet seven and three-fourths inches below the top of the parapet, the trolley wire was strung. The plaintiff was shocked and burned when the wires came together. He had a verdict at Trial Term, which has been affirmed at the Appellate Division by a divided court.6
We think the verdict cannot stand. The defendant in using an overhead trolley was in the lawful exercise of its *210 franchise. Negligence, therefore, cannot be imputed to it because it used that system and not another (Dumphy v. Montreal L., H. & P. Co., 1907 A. C. 454). There was, of course, a duty to adopt all reasonable precautions to minimize the resulting perils. We think there is no evidence that this duty was ignored. The trolley wire was so placed that no one standing on the bridge or even bending over the parapet could reach it. Only some extraordinary casualty, not fairly within the area of ordinary prevision, could make it a thing of danger. Reasonable care in the use of a destructive agency imports a high degree of vigilance (Nelson v. Branford L. & W. Co., 75 Conn. 548, 551; Braun v. Buffalo Gen. El. Co., 200 N. Y. 484). But no vigilance, however alert, unless fortified by the gift of prophecy, could have predicted the point upon the route where such an accident would occur. It might with equal reason have been expected anywhere else. At any point upon the route, a mischievous or thoughtless boy might touch the wire with a metal pole, or fling another wire across it (Green v. W. P. Rys. Co., 246 Penn. St. 340). If unable to reach it from the walk, he might stand upon a wagon or climb upon a tree. No special danger at this bridge warned the defendant that there was need of special measures of precaution. No like accident had occurred before. No custom had been disregarded. We think that ordinary caution did not involve forethought of this extraordinary peril. It has been so ruled in like circumstances by courts in other jurisdictions (Green v. W. P. Rys. Co., supra; Vannatta v. Lancaster L. & P. Co., 164 Wis. 344; Parker v. Charlotte Elec. Ry. Co., 169 N. C. 68; Kempf v. S. & I. E. R. R. Co., 82 Wash. 263; Sheffield Co. v. Morton, 161 Ala. 153). Nothing to the contrary was held in Braun v. Buffalo Gen. El. Co. (200 N. Y. 484) or Wittleder v. Citizens Electric Ill. Co. (47 App. Div. 410). In those cases, the accidents were well within the range of prudent foresight *211 (Braun v. Buffalo Gen. El. Co., supra, at p. 494). That was also the basis of the ruling in Nelson v. Branford Lighting & Water Co. (75 Conn. 548, 551). There is, we may add, a distinction, not to be ignored, between electric light and trolley wires. The distinction is that the former may be insulated. Chance of harm, though remote, may betoken negligence, if needless. Facility of protection may impose a duty to protect. With trolley wires, the case is different. Insulation is impossible. Guards here and there are of little value. To avert the possibility of this accident and others like it at one point or another on the route, the defendant must have abandoned the overhead system, and put the wires underground. Neither its power nor its duty to make the change is shown. To hold it liable upon the facts exhibited in this record would be to charge it as an insurer.7
The judgment should be reversed and a new trial granted, with costs to abide the event.8
HISCOCK, Ch. J., CHASE, COLLIN, HOGAN, CRANE and ANDREWS, JJ., concur.9
Judgments reversed, etc.